Police v Kobayashi [2017] WSSC 159 (8 December 2017)

IN THE SUPREME COURT OF SAMOA
Police v Kobayashi [2017] WSSC 159

Case name:	Police v Kobayashi
Citation:	[2017] WSSC 159
Decision date:	08 December 2017
Parties:	POLICE (Informant) and LAMA KOBAYASHI a.k.a LAMA LEVA’A CHRISTOPHER, female of Leauva’a (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	Accordingly, you are convicted and sentenced as follows, less time in custody: (i) Attempted murder to 4 years and 2 months imprisonment; (ii) Assault causing grievous bodily harm to 1 year 8 months imprisonment, concurrent to attempted murder; and (iii) Armed with a dangerous weapon, 2 months imprisonment also to be served concurrently with the two earlier sentences.
Representation:	O Tagaloa and A Matalasi for Prosecution A M Leung Wai for Accused
Catchwords:
Words and phrases:
Legislation cited:	Crimes Act 2013, Family Safety Act 2013 Police Offences Ordinance 1961
Cases cited:	Police v Ah Kau ([2013] WSSC 139 (8 November 2013)), Police v Nielsen [2014] WSSC 22, Police v Poasa [2017] WSSC 59 (10 April 2017), New Zealand Edri v R [2013] NZCA 264 delivered by Dobson J, Bragovits v National Prosecution Office [2017] WSCA 2 (31 March 2017), Police vs Atonio [2013] WSSC 32 (6 June 2013), Police v Malotutoatasi [2017] WSSC 64 (21 April 2017) Police v Tusitala Su’a & Ors.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

LAMA KOBAYASHI a.k.a LAMA LEVA’A CHRISTOPHER, female of Leauva’a.
Defendant

Counsel:
O Tagaloa and A Matalasi for Prosecution
A M Leung Wai for the Accused

Sentence: 08 December 2017

SENTENCING OF CLARKE J

The Charges:

1 Lama, you appear for sentencing on three charges:

• (i) One charge of attempted murder contrary to section 104 of the Crimes Act 2013 which carries a maximum penalty of life imprisonment;
• (ii) One charge of causing grievous bodily harm contrary to section 118(1) of the Crimes Act 2013 carrying a maximum penalty of 10 years imprisonment; and
• (iii) One charge of being armed with a dangerous weapon contrary to section 25 of the Police Offences Ordinance 1961 carrying a maximum penalty of 1 year imprisonment.

The Offending:

2 According to the Summary of Facts accepted by you through your counsel, on the evening of the 28^th April 2017 at Leauva’a, the victim had been yelling at you three times to wash the dishes. This made you angry.
3 The following morning at around 2.00am, you were still angry at the victim after the quarrel so walked into the house where the victim was sleeping with his children. You armed yourself with a machete. The lights were off. You struck the victim’s face with the machete which woke the victim and he cried out in agony. The victim took a kneeling position from his sleeping position and you again struck the victim on the head and back of his neck with the machete. You intended to kill the victim.
4 Relatives of the victim woke up, turned the lights on and saw blood ‘gushing’ from the his wounds. You then left the house and walked to Afega Police outpost and reported the matter to Police. The victim was taken to hospital and admitted for 1 week. As a result of the attack, the victim suffered:

• (i) Laceration to his head;
• (ii) Laceration on his left cheek
• (iii) Laceration on the back of his neck.

The Accused:

5 You are a 41 year old female of Leauva’a. You told the Probation Service that you were raised at Tufutafoe Savaii. You relocated to Leauva’a and completed schooling to year 11. You say that you were employed at Yazaki, married a Japanese employee of the company and moved to Japan in 1997 where you resided for 17 years. You returned to Samoa when your relationship with your husband broke down. You have 3 children, all of whom remained in Japan when you returned to Samoa. You have been remanded in custody since approximately 29 April this year.
6 According to Tuifagatoa Dr George Leao Tuitama, you suffer from paranoid schizophrenia. You are treated monthly with a intramuscular injection (typical antipsychotic) to ‘help [you] with [your] mental illness.’ In a supplementary report dated 30 October 2017, Dr Ian Parkin and Dr George Leao Tuitama who assessed you on the 30^th October 2017 stated that “at the time of the offence, Lama was not significantly impaired by her mental illness and that it played little or no part in her ability to form criminal intent.”
6 The Probation Service confirms that you are remorseful for your actions. Dr Tuitama in his report dated 25^th August 2017 confirms that you were apologetic for your offending. You again reaffirmed your remorse when examined again by Dr Parkin and Dr Tuitama on the 30^th October, the report stating that you “expressed significant and realistic remorse” as to your actions.
7 Some time was taken to consider your mental health condition resulting in some delay in completing your sentencing. I wish to thank Counsels who have been most helpful in facilitating and obtaining relevant medical reports to assist the Court in understanding your mental health condition and its relevance to your offending. I also wish to thank Dr Parkin and Dr Tuitama for the time they have taken to assist with this matter.

The Victim:

8 The victim is a 33 year old male of Leauva’a. In his VIR dated 26 May 2017, he said that the physical impact of the your offending on him was ‘a huge laceration’ to the back of his neck requiring 16 stitches, a laceration to his head and left cheek.
9 As at the date of the VIR, he said his neck wound was healing and he could move his head from side to side. His injury to his cheek however meant that he could not eat much food because stitches had not been removed.
10 The victim confirms that he and you are first cousins. He says he forgives you for your offending.

Aggravating features:

11 The aggravating features of this matter are:

• The victim and you are family members related by blood and the attack occurred within the context of a domestic relationship (section 17(1), Family Safety Act 2013)
• The use of the machete as a weapon;
• the number of strikes at the accused using the machete;
• your attack on the accused targeted his face and neck;
• the attack was in the presence of children of the victim;
• the injuries suffered by the victim were very serious;
• the vulnerability of the victim; and
• premeditation on your part.

The mitigating features:

12 In respect of the offending, there are no mitigating factors. In respect of the mitigating features personal to you as an offender, I accept and take into account in mitigation that you are genuinely and deeply remorseful, your first offender status, that you cooperated with Police and immediately handed yourself into Police following your offending and your guilty plea at the first available opportunity. I also accept your diminished intellectual capacity arising from your mental condition as a significant mitigating factor personal to you.

Discussion:

13 Prosecution seeks a sentencing start point of 10 years imprisonment. Prosecution further submits that “the defendant is diagnosed with mental illness namely schizophrenia and that she is required to be hospitalized to receive proper medication for her illness” and continues that imprisonment is warranted to protect the community. Prosecution through Mr Tagaloa however also accepts that the approach in Police v Ah Kau ([2013] WSSC 139 (8 November 2013)) for mental illness is also available to the Court.
14 The accused through counsel accepts that a custodial sentence is warranted but submits that adopting a similar approach to Police v Ah Kau, an end sentence of 1 year would be appropriate, less time served.
15 Sentencing of an accused suffering from mental ill health has been considered by the Courts in a number of judgments including Police v Nielsen [2014] WSSC 22; Police v Ah Kau [2013] WSSC 139 and more recently in Police v Poasa [2017] WSSC 59 (10 April 2017). In Police v Nielsen, His Honour Sapolu CJ referred to the New Zealand case of Edri v R [2013] NZCA 264 delivered by Dobson J and stated:

“19. Further on at para [15] , Dobson J says:

“In E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411), the Court reviewed a range of discounts that have been treated as appropriate by this Court when mental ss has contributed to t to the offending, in a range of 12% to 30%. The review also included R v Gordon CA 276/04, 16 December 2in which combined discounts taking into account mental il and other facr factoractors were set at 50% of the starting point. In that somewhat exceptional case, a mother was convicted of the manslaughter of her two month old baby when suffering from natal depression and after fter telling nurses and others of her thoughts of harming her baby”.

16 His Honour Sapolu CJ went on to say:

“Even if I am not satisfied that there was any link between the accused’s epileptic condition and the offending, the authorities clearly show that the ill-health of an accused can mitigate a sentence.”

17 In Police v Ah Kau, His Honour Nelson J sentenced an accused suffering from a mental health illness to imprisonment. Nelson J stated:

“...Had the defendant been a normal defendant without the sort of mental incapacity that this defendant has, he would have expected to receive a sentence of somewhere between 6 to 8 years in prison. Appropriately discounted for mitigating factors. But considering the defendants’s mental status and the other relevant facts of his case, I have come to the conclusion that the minimum term the Court can impose on the defendant would be a period of at least 2 years in prison taking into account his guilty plea and other relevant mitigating factors.”

18 In your case Lama, the medical opinion from Dr Parkin and Dr Tuitama is that at the time of your attack on the victim, you were not significantly impaired by your mental health illness and your mental health condition had little to no causative effect on your offending. Both Dr Parkin and Dr Tuitama however agree that your “illness though is quite significant and when unwell, she [you] are greatly impaired by (sic).”
19 I have considered the various case authorities submitted by Prosecution. I have also had regard to the judgment of the Court of Appeal in Bragovits v National Prosecution Office [2017] WSCA 2 (31 March 2017), and Police vs Atonio [2013] WSSC 32 (6 June 2013), Police v Malotutoatasi [2017] WSSC 64 (21 April 2017). This case is not in my respectful view as serious as Police v Tusitala Su’a & Ors which involved a group attack that continued with a pursuit of the victim. The injuries and nature of the attack was also less serious in my view than Police vs Atonio but more serious than in Police v Malotutoatasi.
20 I adopt as an appropriate start point for sentence 10 years imprisonment on the charge of attempted murder which I take as the lead charge. The start point reflects the seriousness of your offending and the various aggravating features of your offending. For your genuine remorse, I deduct 12 months leaving 9 years imprisonment. For your prior good character and first offender status, 9 months and assistance to Police 3 months leaving 8 years imprisonment. For your mental health condition, I accept that imprisonment will be more difficult for you then for a person not suffering from such a condition. In this regard, I note the GAF Scale Assessment referred to by Dr Parkin and Dr Tuitama in their joint report assessing your functioning level at 21 – 30 when affected by your paranoid schizophrenia. This rating signifies ‘serious impairment’ or the considerable influence of hallucinations or delusions on your behavior. I therefore deduct 15 months leaving 6 years and 9 months imprisonment. There is also forgiveness of you by the victim as well as between your families. In the circumstances including your personal circumstances, mercy is also appropriate with a deduction of 6 months leaving 6 years and 3 months. For your early guilty plea, I deduct 1/3 off the balance. That leaves 4 years and 2 months imprisonment.
21 Accordingly, you are convicted and sentenced as follows, less time in custody:

• (i) Attempted murder to 4 years and 2 months imprisonment;
• (ii) Assault causing grievous bodily harm to 1 year 8 months imprisonment, concurrent to attempted murder; and
• (iii) Armed with a dangerous weapon, 2 months imprisonment also to be served concurrently with the two earlier sentences.

JUSTICE CLARKE